Mark E. Chopko PARISH STRUCTURES Identity, Integrity, and Indissolubility Protecting the p-operty of Catholic what church and whether the CYO basketball teams parishes and defining its ownership in civil were any good. Often parishes were picked by acci- law requires careful positive action and dent-where one lived and grew up dictated what cannot be taken for granted. church one attended. Catholics now give attention to choosing their parishes based on the availability of schools and other programs, a style of music and litur- . gy, cultural values, or other factors.Having put so much ore than just a place to go on Sundays, effort into these choices, Catholics sometimes regard parishes are a source of community and them possessively.Thus, when in the last severalyears M identity for millions of Catholicsin the Unit- some have perceived that their parishes were under as- ed States. When I introduced two of my friends to each sault, ripples of concern swept through Catholic parish other, they discovered themselves to have similar South communities. Side Chicagoroots. Their neighborhoods and points of At the outset let me state that there is no movement reference were not streets or parks but parishes. Re- to target parish assets for seizure in the course of church membrances were triggered based on who attended litigation. Nonetheless, it is true that liability claims and creditors have threatened to reach patrimony, that is, the real estate and cash present in parishes. In some Mark E. Chopko is currently a partner and chair of the ways, nineteenth-century structureshave collided with Nonprofit and Religious Organizations Practice Group in twenty-first-centuryliabilities,and the results are not al- the Washington, D.C., ofice of Stradley Ronon Stevens G. ways gratifying. Young, LLP. From 1987 until 2007 he was general counsel It is not that church administrators have been inat- of the U.S. Conference of Catholic Bishops. The views ex- tentive, but rather that they have been complacent.One pressed in this article are his alone and not necessarily those assumed that the operating presumptions made for of the USCCB, Stradley Ronon, or any other entity. He notes parishes at the time they were created would continue that he is not a canon lawyer. to be part of the culture. Similarly, structural choices I I Summer 2009 CHURCH5 casionally outlawed and thereforefor- bidden to own property. One solution, adopted by Maryland Jesuitsand later adapted by Catholicsin other colonies, was to place land and other property in the hands of reliablelay trusteeswho would hold the property in fee simple (that is, in a person's own name), but with the recog- nition that the property was indeed held in trust for were obvious to those who made them, and they did not the local church. conceive they would need to be explained to succes- Even after the Revolution,many of the models adopt- sive generations of litigants, judges, and regulators. ed by the new states by which religious organizations But, even if we were not prodded by the liability situ- were allowed to own property reflected a Protestant ation facing catholic dioceses in the United States, it is polity. Those corporate forms that did exist provided for clear that we need to give additional attention to the governance entirely by lay people; no clergy were per- structure and operation of parishes. Some of the oper- mitted to serve on any church board. These civil forms ating assumptions on which parish structures were de- and agencies allowed under the law did not acknowl- signed need to be 'rethought and brought into edge differences in ecclesiastical law or custom, but conformity with the.realitiesof modern life and some- rather promoted a uniform property tenure system sub- times even the new (1983) Code of Canon Law. ject to the law of the state. Since all were to be treated This article will chart briefly some of the history of equally, a basic premise of the American experience, how we have'arrived at the current situation, offer a no distinctions, exceptions, or special treatment were brief reflection on certain theological and ecclesiastical allowed for different churches. The assumption at the operating assumptions, and make other observations time was that American institutions reflected a form of about the possible coming structural revolution for homogeneous Protestantism, and one form really was parishes. all that was needed. Catholic bishops and pastors tried to cope with Some tiistory these disabilities as best they could through a variety In the territory now called the United States of Amer- of devices, including the reliable lay "trustee" and ica, local parish churches existed before there were na- holding title to real property in the name of the bish- tive bishops and dioceses. Throughout its colonial op (again with the understanding that such property history, American Catholics labored under significant really was in trust for the church). I have already al- legal disabilities. The church faced many of the same luded to the problem of reliability among trustees. But problems here that it faced in England. Even when the property placed in the bishop's name precipitated a church was not banned outright, it went through var- new problem: On a few occasions, the biological heirs ious periods when its ability to hold propertywas under of the bishop claimed that the real estate titled in his severe restriction. For example, even in Maryland, name at the time of his death should pass to them and founded by the Catholic Calverts, the church was oc- not to his successor. 6 CHURCHSummer 2009 Corporation Sole A major breakthrough in the mode and tenure I of Catholic church property occurred in 1833. In that year, the first statutory corporation sole was created by the Maryland legislature for the Archbishop of Baltimore. It was con- sidered an improvement after 60 years of abuses in the administration of church property in various forms. It allowed the church to end the fee simple ownership of fault lay not with the civil law but with the church's real estate by bishops (which had been gaining ground administrators. As Bishop England noted, under Amer- since the First Provincial Council of Baltimore as a so- ican law, Catholics "can, without departing from lution to unreliable lay trustees) and provided a civil [church] doctrine or discipline, regulate the manner in legal method for episcopal supervision of church prop- which the property is to be held, and how it is to be erty. In 1837, through the Third Provincial Council of managed, and can establish rules to restrict and to di- Baltimore, the bishops decreed that dioceses should rect its managers.. ." use devices provided in the civil law to protect the in- tentions of donors givingaeal and other property to the How We Arrived church. Likewise, the coukcil instructed that such prop- The idea that the structures for Catholic parishes need- erty also should not be.titled in the bishop's name. Prop- ed to be periodically reviewed and adjusted according erty in the corpora60n sole recognized that this was to conditions is not a new idea. The roots of the cur- ecclesiastical property, subject to the law of the church rent discussion are in the 1956 deadly fire at the St. Rose and of the state, that it was separate and apart from the of Lima Oyster Roast in the Archdiocese of Baltimore. bishop's personal estate, and that there was no need During that event, the wooden structure in which the for devices or craft to reach the desired end. function was being held caught fire, and several of the One critical commentator on the American eccle- parishioners were trapped in the flames. Prescient risk sial legal scene at that time, Bishop John England of managers recognized that the potential reach of liabil- Charleston, S.C., criticized some of the administrative ity claims could extend beyond St. Rose of Lima to choices being made in the United States for the opera- other parishes and to the archdiocese, since all were tion of Catholic entities. In his words, Catholic entities organized as one corporation sole. By 1963, Baltimore were among those institutions most negligently man- had separately incorporated its parishes while pre- aged. In his view, church administrators did not take serving the corporation sole for the operation of the sufficient advantage of the various legal devices and archdiocese itself. structures already available to provide discipline and More recent antecedents to this discussion are found guidance for corporate activities and direction for the in the years immediately after the 2002 liability crisis work of trustees. In his view, if the church failed to in the church in the United States. The issue is not make adequate rules to direct the operation of real prop- whether a parish is liable for failing to supervise some erty and the maintenance of donations and gifts, the errant priest. In my view, the parish cannot be because, under the polity of the Catholic church, only the bish- diocese, etc., "we" were not always careful about doc- op can supervise a priest. The issue, rather, is quite like umenting these understandings. In the absence of clear the problem presented by St. Rose of Lima's fire. This documentation, "we" risked the possibility that some time the issue was whether some judgment creditor of court would misread our intentions and find parish the diocese, finding insufficient assets in the diocese to property subject to execution at the behest of the cred- satisfy its claims, might then turn its sights on parishes. itors of the diocese. That risk became a reality when This issue was presented rather dramatically in those bankruptcy courts in two of those proceedings rejected places where dioceses filed for the protection of the the statutory, canonical, and constitutional arguments bankruptcy courts' from their potential creditors.